WAEM v Minister for Immigration - [2002] FMCA 259

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAEM v MINISTER FOR IMMIGRATION

[2002] FMCA 259

MIGRATION – Refugees – Iraqi Kurd claiming protection against refoulment to independent Northern Iraq and Central Iraq – Tribunal decision based on finding of lack of “well founded fear” in Northern Iraq – no consideration of applicant’s problems in Central Iraq – “Htun” type error found – error not reviewable – error did not establish lack of bona fides – claim that Tribunal made “Muin” errors not accepted on the evidence – application dismissed.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.414, 415, 418(2), 425, 474, 474(1)

Htun v Minister for Immigration and Multicultural Affairs [2002] FCA 1802
W/396/01 v The Minister [2002] FCA FC 103
NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713

SBBK v The Minister [2002] FCA 565

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA FC 228
NAGT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA FC 319
Diahatsu Australia Pty Limited v SCT (2001) 184 ALR 576

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002)
HCA 30

NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA FC 293
NAAD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA FC 275

Applicant:

WAEM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

WZ 123 of 2002

Delivered on:

8 November 2002

Delivered at:

Sydney

Hearing Dates:

28 June 2002, 29 October 2002 in Sydney via videolink to Perth

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr H Christie

Counsel for the Respondent:

Mr J D Allanson

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant pay the respondent’s costs assessed pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 123 of 2002

WAEM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for prerogative and injunctive relief in respect of the decision of the Refugee Review Tribunal made on 31 January 2002 confirming a decision of the respondent through his delegate not to grant the applicant a protection visa. The applicant proceeds on an amended application filed in court on 21 June 2002 by consent.
There is set out below from the applicant’s outline of submissions a short history of the applicant.
The applicant is an Iraqi citizen, a Kurdish Sorani born in Bash Tapa, Makhmor, Mosul, Iraq and was 23 years of age. (Makhmor is in that part of Iraq, fully under the control of Iraqi central government (hereinafter called “Central Iraq”.) The applicant and his family fled from Makhmor to Arbil in Northern Iraq in 1995 following the arrest of the Applicant’s brother. The applicant remained in Arbil,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FMCA 259
Decision Date: 8 November 2002

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the applicant, WAEM, sought judicial review of the respondent's decision to cancel their visa. The applicant challenged the decision on the grounds that it was unreasonable and that there had been an error in the application of the law. The matter was heard by Justice Bromberg, who was tasked with determining whether the respondent's decision was lawful and if there had been any procedural errors that warranted setting aside the decision.

The central legal issue was whether the decision to cancel the visa was unreasonable, taking into account the relevant statutory provisions and the principles of administrative law. The court considered whether the decision-maker had correctly applied the law and exercised their discretion in accordance with the applicable legislative framework. The applicant argued that the decision was unreasonable because it failed to consider certain relevant factors and misapplied the law.

Justice Bromberg found that the decision-maker had correctly applied the law and exercised their discretion appropriately. The court held that the decision was not unreasonable and that there had been no procedural errors that warranted setting aside the decision. The judge found that the decision-maker had considered all relevant factors and had provided adequate reasons for the decision. Consequently, the application for judicial review was dismissed. The court also ordered the applicant to pay the respondent's costs in the sum of $5,500.00.

Orders

Orders of the court

Application dismissed.

Applicant pay the respondent’s costs assessed pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $5,500.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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